Doctors in a handful of blue states have found a way to provide abortions to women in red states where it is banned or restricted. They are doing it with a new tool: laws that protect them from prosecutors elsewhere.
These telemedicine shield laws block officials in red states who might prosecute or sue the abortion providers in Massachusetts, New York, California, Vermont, Colorado and Washington State. Those states won’t extradite doctors. They won’t turn over records. They won’t aid in any investigation. It’s a sharp break from the usual pattern of interstate cooperation, as I report in a news story today.
I’ve been covering abortion for over a decade. Since the Supreme Court’s Dobbs decision overturned Roe v. Wade and triggered a wave of bans in conservative states, abortion rights advocates have worked to preserve access. They’ve used mobile clinics across the border from red states — and funds that cover the cost of travel to places where abortion is legal. In today’s newsletter, I’ll talk about one of the newest approaches.
A new tool
The providers started mailing abortion pills under the shield laws just last summer. But their reach has surprised even some advocates. They’ve already prescribed and mailed abortion pills to tens of thousands of women in Texas, Idaho and other places that banned abortion after the high court’s 2022 decision. Patients find them online and fill out forms about their medical history. Providers then evaluate whether patients are eligible. They can be up to 12 weeks’ pregnant and must have no disqualifying medical issues like an ectopic pregnancy or a blood-clotting disorder.
Being able to receive abortion medication at their homes by mail saves patients the time, money and difficulty of traveling to a state where abortion is legal. It also avoids the weekslong wait for pills ordered from overseas. Shield law services charge $150 or $250, but they allow poorer patients to pay less or even nothing.
Abortion opponents in conservative states are outraged. The shield laws are “really trying to completely sabotage the governing efforts of their neighboring states,” said John Seago, the president of Texas Right to Life. “It can’t stand, and we can’t be content with this new development.”
The practice has not yet been challenged in court, but observers think it’s only a matter of time. Law enforcement officials in anti-abortion states may be waiting for a case they think will be persuasive. A senior government official in a conservative state told me about one possible strategy: State officials could first file charges or a complaint against a provider in a blue state. Then, when that state refused to cooperate, a red state could sue the shield-law state itself, claiming that the Constitution’s full faith and credit clause prevents one state from interfering with another’s laws.
States with abortion bans will also watch a lawsuit the Supreme Court will hear next month, in which opponents of abortion have sued the Food and Drug Administration to try to bar abortion pills. (My colleague Emily Bazelon has written for The Morning about how much of the abortion struggle now revolves around pills.) If the justices uphold an appeals court ruling, patients might need in-person doctor visits to obtain the medications.
Doctors tread cautiously
Regardless of the court’s decision in that case, some shield-law providers say they intend to find a way to continue.
Still, they are taking precautions. Most shield-law providers have decided not to travel to states with abortion bans, and some have established trusts to protect their assets from civil suits. Some identify themselves publicly, but others fly under the radar.
I visited one Massachusetts operation in a tiny office behind an unmarked door and watched as Carol, a reproductive health consultant who asked to be identified by her middle name, carefully packaged the two abortion medications, mifepristone and misoprostol. She put them into plain envelopes lined with bubble wrapping so they don’t rattle when they are mailed to patients. I accompanied her to the post office, where she mailed dozens of envelopes across the country.
“We’re a free country,” said Lauren Jacobson, a nurse practitioner at the Massachusetts clinic who sometimes writes 50 prescriptions a day. “So let’s put that to test. Here we are and we’re not going to be intimidated, and we have our states backing us.”
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A major Alabama health system paused most I.V.F. procedures after the state’s Supreme Court ruled that frozen embryos are children, citing antiabortion language in the state constitution.
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